A Crack in the Law

Charged with murder in 1999, David Bacon has yet to stand trial. His low IQ has presented the court with two unpleasant options.

Dirty Pretty Things Cedar Lee
Prince Phillip Hill's autopsy report is written in a language that's equal parts Latin and Mickey Spillane. The coroner's notes mention arteriosclerosis and a tattoo of a woman on the right forearm. A subgaleal hemorrhage and a stab wound. Cutaneous and dark purple-red contusions. Multifocal portal triaditis and blunt impacts to head.

Hill -- "a well developed, adequately nourished, overweight, black male appearing the stated age of 75 years" -- was pronounced dead at 3 a.m. on October 3, 1999. East Cleveland police had found him lying between the kitchen and living room of his Taylor Road apartment. Wet blood made a halo on the floor underneath his head.

The coroner wasn't sure whether Hill, a retired bus driver, died from the stab to the chest, which perforated his heart, or from the beating. His head, trunk, and extremities were bloodied and bruised. His neck showed ligature marks. He had also been sprayed in the face with Easy-Off oven cleaner.

Police soon arrested two suspects: Hill's then-23-year-old daughter Michelle and her boyfriend.

Michelle Hill later pleaded guilty to voluntary manslaughter. She was sentenced to eight years in prison for her role in her father's killing. The boyfriend, David Bacon, has yet to be found guilty or innocent on murder and robbery charges, though court records indicate that he confessed to the crimes.

Bacon has spent the last four years in a sort of suspended animation, as the justice system tries to figure out what to do with him. He is mentally retarded, with IQ scores in the 60s. A judge has found Bacon, who is today 24, incompetent to stand trial. However, his ability to think and function is not sufficently inadequate for him to be committed. Put bluntly, he is too dumb to stand trial, but too smart to be held against his will.

David Grant, one of the attorneys appointed to represent Bacon, says his client falls into a "legal abyss." He adds: "This is one of those once-in-a-lifetime cases."

Phillip Hill spoke on the telephone with his girlfriend, Johnnie Mae Wanzo, at 10 a.m. on the day he was killed. They spoke again three hours later, according to the narrative constructed by police. Wanzo asked Hill about his plans for the day

"When I get rid of them, I'm going to pick you up," he told her.

"Who are you talking about?" Wanzo asked.

"Michelle and her boyfriend," Hill responded.

Wanzo made a trip to White Castle. She returned home and waited. At 3 p.m., when Hill still hadn't shown up, Wanzo tried to call but found the line busy. It stayed busy. Worried, Wanzo asked a phone operator to check the line. She also called Louella Wills, Hill's second oldest and most attentive daughter. (Hill had five daughters in all. Four were the children of his wife, Louise, who filed for divorce in 1988, after 41 years of marriage. Michelle, the youngest, had been born to another woman in 1976.) Wanzo asked whether someone could pay Hill a visit.

Wills in turn called her daughter, Roxann Brown, and apprised her of the situation. A cousin, Phillip Scales, and his girlfriend, April Frazier, were visiting Brown at the time she received the call. Scales and Frazier went to check on the old man at the Owls Nest Apartments. Scales says he was drafted for the job because his car was the last in the driveway.

No one answered when Scales and Frazier knocked on the door of Hill's apartment. The door, however, was unlocked. They entered. Scales was checking the bedroom when Frazier shrieked, "Oh my God!" She had found the body.

Based on Wanzo's statement, Michelle Hill and her scarecrow of a boyfriend (he's 6-foot-3 and 160 pounds) were the last to see Phillip alive and, therefore, the most obvious suspects. Brown also provided incriminating information. She told police that Michelle had called on the morning of the day Phillip Hill was killed and asked whether his monthly check had arrived. (Brown lived in the Cleveland Heights home that had been Hill's main residence before he moved into a senior-friendly apartment.) Brown had taken the check to him on the day before his murder.

Throughout the years, Michelle Hill and her half-sisters had little to do with each other. "I never liked her," says one of the sisters, Louise Callahan. Circumstances precluded a loving relationship: Michelle was the product of an affair, a generation younger, and slow-witted. Callahan says Michelle struggled with tasks as simple as paying for groceries. She received assistance, like job placement, from the county Board of Mental Retardation.

Phillip Hill watched over his youngest daughter. He had the means to provide for her. Court records indicate that he kept several bank accounts. Upon his death, the four daughters divided $177,000 in cash. Additional assets remain tied up in probate court. (Hill did not leave a will.) He amassed his wealth by not spending it. "He was tight," Callahan says. "I used to tell him he needed to take a cruise."

Says Scales: "He had money all over the place."

If frugality put Hill's life in jeopardy, his loved ones doubt that Michelle was capable of hatching a murder-for-money plot. "She was a follower; she was not a leader," Wanzo says. "That's where her slowness came in, I guess. Guys persuaded her easily, from what I used to hear Phillip say."

Scales says that men pressured Michelle to give them her allowance or to steal from her father. She also gave them her body. At the time of her arrest, Michelle was seven and a half months pregnant. (The baby, which Bacon did not father, was eventually placed by adoption.) Men, Scales says, "would try to dog her out, because they think she can't get a boyfriend. She wanted a boyfriend bad, but nobody would stick with her."

So Phillip Hill's loved ones steer blame for the murder toward her lanky companion. It must have been his idea, they say, to bully the old man out of his money. When Hill resisted, the shakedown turned violent.

A judge, however, would find the boyfriend to be anything but the calculating type.

David Bacon is considered mildly retarded, a term assigned generally to those whose IQs fall between 50 and 70. Composing about 2 percent of the population, the mildly retarded can learn up to about a sixth-grade level. With some help, they usually acquire the skills to support themselves. But they have difficulty adjusting to new situations and are prone to gullibility and poor decision-making.

The disability should be recognizable before age 18, and according to court records, Bacon attended special-education classes while in Cleveland schools. In adult life, he held a job bagging groceries for one year. He also worked at Hopkins airport, pushing wheelchairs for a private security company. (There he met Michelle Hill, who had been placed in a similar job.)

Bacon's lack of cognitive ability is such that the office of Cuyahoga County Prosecutor William Mason initially agreed that he was not competent to stand trial. He was then transferred to a state psychiatric facility in Dayton for what is known as "restoration therapy."

The purpose of restoration therapy is to prepare unfit defendants for trial. State hospitals last year received 600 such cases from criminal courts. Most are classified as mentally ill. The Plain Dealer reported that Eroge Thomas, the ex-con who is alleged to have stabbed to death the lead cook at a downtown restaurant last month, was ruled mentally ill and unfit to stand trial when he was accused of murder in 1981. After several months of therapy, Thomas was returned to the court, where he accepted a plea that resulted in his spending 20 years in prison.

But while bipolar disorder can be treated with medication, no pill raises IQ level. Retardation is not a disease to be cured or an emotional state to be overcome. Restoring the retarded is a process of addressing what Dr. Howard Sokolov, the Ohio Department of Mental Health's assistant medical director for forensic services, calls "competency deficits." Essentially, the retarded are "taught" courtroom proficiency. Videotapes explain procedure and etiquette. Workbooks drill the lessons home. Quizzes monitor progress.

Sokolov says the state is able to restore 75 percent of referrals. As of early 2001, Bacon counted among the successes. He was a model subject for the three months he spent in Dayton, according to papers filed by the prosecution. He cooperated with staff and obeyed the rules. He used the public telephone. He maintained hygiene. He sought placement in the treatment center's "honor-style apartment side." A staff psychologist, Dr. Massimo DeMarchis, thought Bacon was competent.

Dr. Margaret Lahner, a court psychologist who examined Bacon on his return to the county jail, also believed him fit for trial. Lahner gave Bacon a standardized test designed to measure courtroom competency, and he correctly answered 38 of 44 questions, according to court papers.

Prosecutors asked Judge Chris Boyko to let the trial proceed. Bacon, the prosecution argued, "lifted himself above his IQ status of mild retardation to function in the world as we all know it: school, work, personal hygiene, public resources, interaction and conflict resolution with other people, and the ability to remember and follow the rules and laws that allow society to function."

A defense attorney who represented Bacon at the time challenged the examiners' assertions. Jeffrey Kelleher says that nurses and other staff members at the Dayton facility "clearly expressed feelings [Bacon] wasn't competent" in their reports. And Dr. Lahner, Kelleher says, was inexperienced in mental retardation and did not administer the test herself. (Reached by Scene, Lahner could not recall the specifics of the exam. She described her work with the retarded as "extensive," including 18 years at the psychiatric clinic and a stint running a sheltered workshop.)

Boyko found Bacon competent to stand trial, but the designation was short-lived. If Bacon had been restored in Dayton, his skills diminished amid the stimulus deprivation of county jail, where he had been sitting for the last six months. Boyko again referred him to the Court Psychiatric Clinic.

He was seen by the clinic's director, Dr. Phillip Resnick, a Case Western professor of psychiatry who served as a defense witness for Andrea Yates, the Texas mother who drowned her children. In contrast to the patient able to "lift himself" above his IQ, Bacon appeared helpless to Dr. Resnick. Bacon, Resnick told the court, was unable to evaluate different plea-bargain scenarios. Resnick thought also that Bacon's limited vocabulary and vulnerability to cross-examination would make testifying a hardship. Further, Bacon did not seem to grasp the possible consequences. For instance, Bacon said that prison was the worst punishment he faced, when in fact the death penalty was in play.

The defense maintains that Bacon's supposed breakthroughs in therapy are merely his picking up chatter, like a talking bird in a pet shop. Attorney David Grant is dubious of any assertion that competency to stand trial is something that can be achieved. "You can teach an animal to do something through repetition, but it doesn't mean that he understands what he's doing," he says.

Eventually, the prosecution stipulated that Bacon was not competent. Boyko then dismissed the indictment. He had little choice. The law allots one year for defendants to be restored. Boyko ruled that it was not likely that such a transformation would take place. His opinion relied heavily on the evaluations of Resnick and Dr. James Eisenberg, a court-appointed psychologist who described Bacon's chance of being restored as "remote."

Boyko filed papers to have Bacon committed, but it was a wasted effort. By law, the mildly retarded cannot be hospitalized against their will. Probate court has jurisdiction over the moderately, severely, and profoundly retarded only. The petition was dismissed.

Bacon's intelligence, found lacking for criminal prosecution, was too abundant for him to be made a ward of the state. His case had exposed a blind spot in the law.

Frank Hickman, a Cleveland attorney who specializes in disability issues, says he's seen such a case only once or twice in his 30 years practicing law in Ohio. Defendants unfit for trial but too sound for involuntary commitment compose a small class that might be limited to the mildly retarded and, as Hickman notes, Hellen Keller. "It's an interesting anomaly," he says.

For Bacon, a dismissed indictment did not open cell doors.

Boyko ordered that he be held for the maximum 10 days, allowing the prosecutor's office to seek and obtain another indictment (and a third, as the second was withdrawn five months later because of a procedural error). Since there was no trial, double-jeopardy protections do not apply.

The most significant change in Bacon's status is that he is no longer subject to the death penalty. Last summer, the U.S. Supreme Court declared the execution of the retarded unconstitutional. Justice John Paul Stevens, writing for the majority, said a "national consensus" now rejected the practice. It might have been more accurate to credit a "world consensus." According to Amnesty International, since 1995, Japan, Kyrgyzstan, and the U.S. are the only nations to have executed a retarded person. Of the 38 states that had a death chamber, 20 (including Ohio) did not shield the retarded.

But was the Supreme Court being humane or arbitrary in striking down the death penalty for defendants who score 70 or less on an intelligence test? While Bacon is no longer in danger of lethal injection, his case illustrates the law's inability to draw rigid distinctions between subtle grades of intelligence.

Prosecutors have asked the court to disregard clinical definitions and instead see Bacon for the abilities he seems to possess. The prosecution has argued that, under questioning, Bacon has recited his Miranda rights, recalled the name of his arresting police officer, and changed his alibi when it was challenged. Four doctors, the prosecutors also noted, have said that Bacon is restorable.

Still, while prosecutors have stipulated that Bacon is retarded, they also suggest that he's malingering. It makes for odd rhetoric. "The defendant is apparently relying on his reduced intellectual abilities to create an appearance of incompetence," the prosecution once contended. So, Bacon is using his stupidity to appear . . . stupid?

If Bacon is found fit for trial, the prosecutor's office will then try to cast him as smart enough to have schemed, but dumb enough to have gotten caught. "He did everything right, except for confessing," lead prosecutor Michael Horn says. "I mean, they found evidence. There was a photo of him going into the apartment building with the victim's daughter. There was a lot of physical evidence tying him into it. And then he tried to get rid of the evidence.

"He hid articles that were taken from the apartment, things that had blood on them. He knew what he was doing. And he initially told police he didn't do it."

Kelleher, however, thought his former client to be incapable of such mayhem. "He's a pussycat," he says of Bacon. "He's a pleasant, childish pussycat."

At this point in the proceedings, both sides are reluctant to discuss the murder in detail. The strands of information that have been made available are open to interpretation. The prosecutor's office, for instance, has said that Bacon wore socks on his hands at the crime scene. Concealing fingerprints would indicate cunning. But does the choice of socks suggest something else, like silliness or panic? Court records say that Bacon confessed. But was the confession elicited after hours of skilled interrogation, or is he so impressionable he would admit to murdering Laci Peterson? (Grant would not allow Bacon to be interviewed for this article.)

Questions such as these nudge the discussion toward the idea of culpability -- whether the retarded should be held as responsible for their crimes as those with average or superior intelligence. But then, what about schizophrenics or victims of child abuse? David Bodiker, the state's public defender, estimates that 40 percent of Ohio prison inmates are somehow mentally defective. "There are a lot of severely damaged people who are equally impaired [as the retarded], who don't get the benefit of the doubt," he says.

For now, though, the court is concerned only with Bacon's ability to play the role of defendant. The state is making another attempt to teach him to stand trial. He is being treated at a facility in Columbus. Judge Boyko expects to see a report in a few weeks.

Grant says that if Bacon is found fit for trial, the defense will seek the opinion of another doctor. If Boyko decides that Bacon is not competent and the indictment is dismissed, the defense will move to prevent the prosecution from going to the grand jury a fourth time. "We think they have to let him go," Grant says. "It's a matter of due process. You can't hold someone indefinitely."

Horn seems to anticipate this scenario. If Bacon is found not restorable, "then I have a problem," he says, "but I don't think it's worth talking about until we hear [the results of the latest restoration attempt], because that's the heart of everything."

A third option may exist. The courts can incapacitate a defendant who is found not competent and not restorable. It happened in a headline-making case in 1996, when a 24-year-old man was charged with manslaughter and arson after a catastrophe at a fireworks store in the southern Ohio village of Scottown.

On the day before the Fourth of July, Todd Hall allegedly touched a burning cigarette to a crackling wheel firework. Explosive ignited explosive, and flames consumed the store, which was busy with holiday shoppers. Fire and smoke blocked one of the exits. Nine people died, and several more were injured in the blaze.

A judge found Hall incompetent to stand trail. As a young teenager, Hall had suffered a traumatic skateboarding accident. He underwent two brain operations, the second a partial lobotomy that left him in a coma for six weeks. Neighbors said he had the mind of a 12-year-old, and in court his behavior resembled that of a poorly raised child. He interrupted the judge. He shouted obscenities. He saluted the victims' families. He giggled.

Judge W. Richard Walton has maintained control of Hall since dismissing the charges. A judge can keep hold of a defendant without a verdict under two circumstances. One is if the judge concludes that the defendant committed the crime and is mentally retarded and subject to hospitalization or institutionalization -- i.e., moderately or severely retarded.

Or, the judge may decide the defendant is mentally ill. Hall has been designated as mentally ill, though a head injury may not follow the textbook definition of mental illness. "It's kind of shoehorning the person into the system instead of letting them return to the street," says Dr. Resnick, the court psychiatrist who said Bacon's chances of restoration were not probable. (Resnick was speaking generally. He said he had no idea whether such a finding is forthcoming in Bacon's case.)

Walton has ordered that Hall stay indefinitely in a psychiatric hospital in Athens. Hall appears before the judge every two years. He is unlikely ever to face the charges. Walton says Hall's impairment is such that a blistered hand wouldn't teach him to beware a hot stove. "Cause and effect doesn't mean a lot to Todd," he says.

For Judge Boyko, whether Bacon should be tried weighs heavily on his mind. In his most recent ruling, he describes the case as "tortuous." At another point, he poses a series of questions: "To what extent, if any, has the defendant malingered? Are his responses self-serving, convenient, or based upon a true lack of understanding? He was restored after three months of instruction -- is he restorable again within one year?"

It's as though the answers have passed into the realm of the unknowable.

There were television reports, but Prince Phillip Hill's murder went unmentioned in The Plain Dealer. The brief death notice offered no clues to his grisly end.

Four years later, Louise Callahan has trouble understanding why her father's alleged killer has yet to stand trial. Callahan has worked as a switchboard operator at a podiatry college for the last 24 years, and her understanding of the courts is limited to what she sees on television. Justice, she says, seemed to move faster for O.J. and the guy who played Baretta. "I guess people just have money to push those cases through," she says with a sigh.

Hill's is not the only family waiting for a decision. Roselyn Bacon keeps in contact with her son's attorneys. Unhappy to learn of the media's interest in his alleged crime, she declined to speak with Scene.

The defendant who has been convicted of killing Phillip Hill also refuses to speak. "Please dont write me no more," Michelle Hill wrote on the back of an interview request Scene mailed to the women's prison in Marysville. "If you have any questions about what [Bacon] did that night you need to ask him!"

On the return envelope, which had been provided, Hill added: "Please my case is over done with and Im paying my debt to society."

Then she drew a smiley face.

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